The affiant negligently usurped the inference drawing authority of the magistrate [not to mention the magistrate not doing his or her job either in even signing this warrant], and that affects the probable cause finding. Defendant argued particularity for the search of his computer in the trial and appellate court and neither dealt with it. The warrant authorized a search of the computer without saying for what, and that was fatally overbroad. The good faith exception does not apply because reliance on this warrant was not objectively reasonable. State v. Castagnola, 2015-Ohio-1565, 2015 Ohio LEXIS 977 (April 28, 2015):
[*P77] Since the issue we address is the search of Castagnola’s computer, the language “[r]ecords and documents stored on computers” is the focal point. The plain language of this paragraph demonstrates that there is no limitation on what records and documents were to be searched for in Castagnola’s computer.
[*P78] A separate section, which does not expressly or indirectly relate back to the first, is titled “If found, said items will be seized and used as evidence in the prosecution of.” Under that title, the following crimes are listed: retaliation, criminal trespassing, criminal damaging, and possession of criminal tools. The state argues that the warrant language “If found, said items will be seized and used as evidence in the prosecution of” establishes a limitation on the search of the computer. However, this interpretation belies the language of the search warrant and in this case, is contrary to law.
[*P79] Courts addressing the particularity requirement of the Fourth Amendment are concerned with two issues. The first issue is whether the warrant provides sufficient information to “guide and control” the judgment of the executing officer in what to seize. United States v. Upham, 168 F.3d 532, 535 (1st Cir.1999). The second issue is whether the category as specified is too broad in that it includes items that should not be seized. See United States v. Kow, 58 F.3d 423, 427 (9th Cir.1995).
[*P80] A search warrant that includes broad categories of items to be seized may nevertheless be valid when the description is “‘”as specific as the circumstances and the nature of the activity under investigation permit.”‘” Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001), quoting United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.1988), quoting United States v. Blum, 753 F.2d 999, 1001 (11th Cir.1985). Warrants that fail to describe the items to be seized with as much specificity as the government’s knowledge and the circumstances allow are “invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.” United States v. Fuccillo, 808 F.2d 173, 176 (1st Cir.).
[*P81] Because computers can store a large amount of information “there is a greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer. *** Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant.” United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001). “[P]ractical accuracy rather than technical precision” is the operative consideration. United States v. Dorrough, 927 F.2d 498, 500 (10th Cir.1991).
[*P82] Here, the search warrant did not contain any description or qualifiers of the “records and documents stored on the computer” that the searcher was permitted to look for. The next section of the search warrant, which delineated that if any records and documents were seized, those items would be used to prosecute Castagnola for the crimes of retaliation, criminal trespassing, criminal damaging, and possession of criminal tools, added nothing to narrow the search. As written, this search warrant failed to address both concerns that courts consider when determining whether a warrant satisfies the particularity requirement of the Fourth Amendment.
[*P83] First, as evidenced by the testimony of the BCI analyst, the language of the search warrant did not “guide and control” her judgment as to what was to be seized on the computer. See Upham, 168 F.3d at 535. She indicated that Castagnola’s computer was brought in for a case involving “menacing, threatening, and intimidation.” The analyst read the case synopsis and the search-warrant affidavit and then looked at all the information on the hard drive “looking for any evidence of intimidation of David Maistros *** and anything associated with that.” Therefore, the determination on what to seize was within her discretion.
[*P84] Second, the broad language of this search warrant clearly included items that were not subject to seizure. The search warrant permitted her to examine every record or document on Castagnola’s computer in order to find any evidence of the alleged crimes. In processing the hard drive, she testified, she was going through the “documents, images, videos.”
[*P85] The state, without addressing Castagnola’s argument that the warrant lacked particularity as to “what” was to be seized in the computer, asserts that “[n]othing in the record suggests that the police knew ahead of time precisely where or on which devices those items were stored.” However, the particularity issue we address here does not relate to where the information was stored but rather “what” evidence the detective had a fair probability of believing existed on Castagnola’s computers.
[*P86] In this case, the detective believed that Castagnola had found Maistros’s address online and that evidence of the online search would be useful in the prosecution of the alleged offenses. The detective testified at the suppression hearing that in addition to a general Google or online-white-pages search for Maistros’s name, he believed that Castagnola may have searched a clerk of courts’ website for information about Maistros because Castagnola had mentioned in his conversation with Source May that he had discovered that Maistros had received a parking ticket years earlier. The detective also testified that from his previous experience, he knew that an online search would create “a cookie, which will tell you where [the persons who have used the computer] have been, what searches they have done, things of that nature.”
[*P87] Under the Fourth Amendment, these details regarding the records or documents stored on the computer should have been included in the search warrant to guide and control the searcher and to sufficiently narrow the category of records or documents subject to seizure. Moreover, this degree of specificity was required, since the circumstances and the nature of the activity under investigation permitted the affiant to be this specific. Guest, 255 F.3d at 336.
[*P88] In urging this court to find that the search warrant sufficiently particularized the items to be searched for, the state provides a breadth of authority rejecting the notion that a search warrant must contain a restrictive protocol, methodology, or other strategy for conducting the search in order to satisfy the Fourth Amendment. We agree that the Fourth Amendment does not require a search warrant to specify restrictive search protocols, but we also recognize that the Fourth Amendment does prohibit a “sweeping comprehensive search of a computer’s hard drive.” Walser, 275 F.3d at 986. The logical balance of these principles leads to the conclusion that officers must describe what they believe will be found on a computer with as much specificity as possible under the circumstances. This will enable the searcher to narrow his or her search to only the items to be seized. Adherence to this requirement is especially important when, as here, the person conducting the search is not the affiant. See generally United States v. Gahagan, 865 F.2d 1490, 1498-1499 (6th Cir.1989).
[*P89] “[W]e do not intend to make the process of determining the sufficiency of an affidavit a hypertechnical one.” State v. Kinney, 83 Ohio St.3d 85, 95, 1998 Ohio 425, 698 N.E.2d 49 (1998). We understand that police and magistrates are not required to do the impossible. However, the specific evidence sought must be clearly stated: “As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231, Treas. Dec. 42528 (1927). “[A] search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.” Massachusetts v. Sheppard, 468 U.S. 981, 988, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), fn. 5.
[*P90] Having determined that the search warrant lacked particularity and was therefore invalid, we must now consider whether the evidence obtained in execution of the invalid search warrant should be suppressed.
IV. The Exclusionary Rule and the Good-Faith Exception
[*P91] Castagnola argues that the good-faith exception to the exclusionary rule does not apply in this case. We agree.
. . .
[*P99] If the only problem in this case were the detective’s negligence—the undisclosed inference in the search-warrant affidavit—then application of the exclusionary rule would not promote the purpose of the rule. One instance of police negligence does not justify the exclusion of the evidence. Id. at 147.
[*P100] However, the negligent inclusion of the undisclosed inference is just the tip of the iceberg here. The affidavit was so lacking in indicia of probable cause and the warrant was so facially deficient in failing to particularize the items to be searched for on Castagnola’s computer that the detective could not have relied on it in objective good faith.
[*P101] Quite simply, the search-warrant affidavit was not based on evidentiary fact. It was based on layered inferences. Moreover, the search warrant failed to particularly describe the items to be searched for on Castagnola’s computer with as much specificity as the detective’s knowledge and the circumstances allowed. Perhaps the most telling flaw of the warrant request came at the end of the detective’s testimony at the suppression hearing:
